This article is from a transcript of the opening presentation of FFF’s September 21, 2021, conference “Restoring Our Civil Liberties.”
When we think about civil liberties, it’s very common in contemporary discourse to distinguish civil liberties from economic liberties, even political liberties. And occasionally, you’ll hear the term civil liberties used interchangeably with personal liberties. Civil liberties are commonly distinguished from or even considered superior or prior to economic liberties. That’s a topic of some controversy, and I’m going to circle around at the end of this presentation to that very question. Such distinctions between civil liberties and other liberties are quite recent, actually dating just from the previous century. So for a far longer period of time, civil liberties referred to those liberties that are constitutive of civil liberty — that is to say, the liberties enjoyed by people in a civil society.
John Locke, one of the very important figures in establishing the intellectual foundations of modern liberty, put it very neatly. He talked about natural liberty — that is to say, the liberty people had prior to joining a civil society — and civil liberty:
The only way whereby any one divests himself of his natural liberty, and puts on the bonds of civil society, is by agreeing with other men to join and unite into a community for their comfortable, safe, and peaceable living one amongst another, in a secure enjoyment of their properties, and a greater security against any, that are not of it.
What’s very important when examining this is to understand that property for Locke and people of his generation and for many years to follow didn’t mean what it means today. Today in contemporary English, we say, “This is my property.” It means “my stuff.” For Locke, it had a much broader meaning, referred to lives, liberties, and estates, which I call by the general name of property. So property was anything to which you had, as we would say, a right. A right to your life, a right to your liberty, and a right to your estate, which is your stuff. The term property today has shrunk substantially to mean mainly your stuff, your house, your car, your land, your farm, and so on.
If we look at later writings about civil liberty, John Brown, an English divine or prelate, put it very succinctly. He said that the necessity of curbing and fixing the natural desires or unlimited activities of human beings in a natural state was to be given up when we join a state of civil liberty. And it was from this restraint on our ability or power to harm other people that civil liberty was derived. So civil liberty referred to the liberty that people enjoyed in a civil society.
William Blackstone, in his very famous runaway best-seller, The Commentaries on the Laws of England, had a huge impact on thinking in the American colonies. It’s very difficult to overstate the importance of Blackstone in the foundation of the American republic, certainly the American Revolution prior to that, and the establishing of how people thought about law and freedom. He pointed out that civil liberty was incompatible with arbitrary and unrestrained power. “One of the principal bulwarks of civil liberty,” he said of the British Constitution, was “the limitation of the king’s prerogative by bounds so certain and notorious, that it is impossible he should ever exceed them, without the consent of the people.” So civil liberty meant living in a society in which power was very carefully controlled and bounded.
The liberty of people in a civil society
Civil society is a term that we often hear bandied about today. It’s been used in different and sometimes contradictory ways over the centuries, so it’s important to specify what you mean by it. It’s a term of sociological-political analysis. We think of government and state and so on. To understand the meaning of civil society, it helps to understand a little bit of its own history. Like many modern institutions, it arose in the reemerging urban orders of Europe, and it distinguishes civil societies from feudal societies and other kinds of societies. It’s comparable to the tradition of democratic government — government by the demos, by the people — that was pioneered in ancient Greece. But it evolved in new conditions that encouraged public deliberation and voluntary cooperation, and it replaced tribalism, political tyranny, and absolutism.
The reemergence of these urban institutions in Europe that we call civil society were influenced by the rediscovery of classical texts — texts from the ancient world — that provided a political terminology, often derived from Latin or Greek, that would be used to describe the ways in which people lived together in legal relationships.
One thing that’s important to grasp is that civil societies are not the natural or equilibrium state of mankind. That was a big error that the American government and other governments were informed by when they invaded Iraq and Afghanistan. Their view was that a civil society is the natural state of humanity, and that all you have to do is to remove some obstacle — a dictator, like Saddam Hussein or the Taliban or al-Qaeda — and then society will turn out to be just like Oregon or Belgium. Obviously, it didn’t turn out that way, and the reason is that civil societies are characterized by equality of citizens, by civil liberty, which can be expressed as a multitude of liberties. That’s why we talk about civil liberties in the plural. But it has to be developed. It’s not something that just naturally happens. It’s difficult and takes time to establish principles such as the rule of law, equality before the law, and the presumption of liberty, a topic that I’ll return to toward the end.
So let’s start to understand civil society, the society of equal liberty, by looking at the idea of liberty. If you go back to the archaic world in the works of Homer, there are four mentions of liberty, and it’s quite interesting. Three of them concern women, and the scholars have suggested that liberty emerges primarily in the contrast between the free person and the slave, that it was that distinction that was so striking to people in the archaic world.
Here we have a scene from The Iliad in which Hector is worried about what happens if Troy falls. He says specifically to his wife, Penelope, “It is not so much the pain to come of the Trojans that troubles me … as troubles me the thought of you, when some bronze-armoured Achaian” or Greek “leads you off, taking away your day of liberty. But may I be dead and the piled earth hide me under before I hear you crying and know by this that they drag you captive.”
What he means in this context is that women understood that for a city to lose in a conflict with another city meant they would be enslaved. They would become sex slaves. They would become domestic servants. They would be enslaved. The men were going to die in battle, so that very much slavery was an experience women anticipated in the event of defeat. That fundamental idea of liberty, not being enslaved, comes to fill up more of the political space and to carry more connotations of personal independence.
This article was published in the November 2022 edition of Future of Freedom.
The post The Historical Foundation of Civil Liberties, Part 1 appeared first on The Future of Freedom Foundation.
The Future of Freedom Foundation was founded in 1989 by FFF president Jacob Hornberger with the aim of establishing an educational foundation that would advance an uncompromising case for libertarianism in the context of both foreign and domestic policy. The mission of The Future of Freedom Foundation is to advance freedom by providing an uncompromising moral and economic case for individual liberty, free markets, private property, and limited government. Visit https://www.fff.org